IRS’ Lerner Had History of Harassment, Inappropriate Religious Inquiries at FEC

Perhaps no other IRS official is more intimately associated with the tax agency's growing scandal than Lois Lerner, director of the IRS’s Exempt Organizations Division. Since admitting the IRS harassed hundreds of conservative and Tea Party groups for over two years, Lerner has been criticized for a number of untruths—including the revelation that she apparently lied about planting a question at an American Bar Association conference where she first publicly acknowledged IRS misconduct.

Logo of the Internal Revenue Service

Still, Lerner has her defenders in the government and the media. Shortly after the scandal broke, The Daily Beast published an article headlined "IRS Scandal’s Central Figure, Lois Lerner, Described as ‘Apolitical.’" Insisting Lerner, and the IRS more broadly, were not not politically motivated has been a central contention of those trying to minimize the impact of the scandal.

The trouble with this defense is that, prior to joining the IRS, Lerner's tenure as head of the Enforcement Office at the Federal Election Commission (FEC) was marked by what appears to be politically motivated harassment of conservative groups.

Lerner was appointed head of the FEC's enforcement division in 1986 and stayed in that position until 2001. In the late 1990s, the FEC launched an onerous investigation of the Christian Coalition, ultimately costing the organization hundreds of thousands of dollars and countless hours in lost work. The investigation was notable because the FEC alleged that the Christian Coalition was coordinating issue advocacy expenditures with a number of candidates for office. Aside from lacking proof this was happening, it was an open question whether the FEC had the authority to bring these charges.

James Bopp Jr., who was lead counsel for the Christian Coalition at the time, tells The Weekly Standard the Christian Coalition investigation was egregious and uncalled for. "We felt we were being singled out, because when you handle a case with 81 depositions you have a pretty good argument you're getting special treatment. Eighty-one depositions! Eighty-one! From Ralph Reed's former part-time secretary to George H.W. Bush. It was mind blowing," he said.

All told the FEC deposed 48 different people—and that doesn't begin to account for all the FEC's requests for information. Bopp further detailed the extent of the inquiry in testimony delivered before the congressional Committee on House Administration in 2003:

The FEC conducted a large amount of paper discovery during the administrative investigation and then served four massive discovery requests during the litigation stage that included 127 document requests, 32 interrogatories, and 1,813 requests for admission. Three of the interrogatories required the Coalition to explain each request for admission that it did not admit in full, for a total of 481 additional written answers that had to be provided. The Coalition was required to produce tens of thousands of pages of documents, many of them containing sensitive and proprietary information about ﬁnances and donor information. Each of the 49 state afﬁliates were asked to provide documents and many states were individually subpoenaed. In all, the Coalition searched both its offices and warehouse, where millions of pages of documents are stored, in order to produce over 100,000 pages of documents.

Furthermore, nearly every aspect of the Coalition’s activities has been examined by FEC attorneys from seeking information regarding its donors to information about its legislative lobbying. The Commission, in its never-ending quest to find the non-existent “smoking gun,” even served subpoenas upon the Coalition’s accountants, its fundraising and direct mail vendors, and The Christian Broadcasting Network.

One of the most shocking things about the current IRS scandal is the revelation that the agency asked one religious pro-life group to detail the content of their prayers and asked clearly inappropriate questions about private religious activity. But under Lerner's watch, inappropriate religious inquiries were a hallmark of the FEC's interrogation of the Christian Coalition. According to Bopp's testimony:

FEC attorneys continued their intrusion into religious activities by prying into what occurs at Coalition staff prayer meetings, and even who attends the prayer meetings held at the Coalition. This line of questioning was pursued several times. Deponents were also asked to explain what the positions of “intercessory prayer” and “prayer warrior” entailed, what churches speciﬁc people belonged, and the church and its location at which a deponent met Dr. Reed.

One of the most shocking and startling examples of this irrelevant and intrusive questioning by FEC attorneys into private political associations of citizens occurred during the administrative depositions of three pastors from South Carolina. Each pastor, only one of whom had only the slightest connection with the Coalition, was asked not only about their federal, state and local political activities, including party afﬁliations, but about political activities that, as one FEC attorney described as “personal,” and outside of the jurisdiction of the FECA [Federal Election Campaign Act]. They were also continually asked about the associations and activities of the members of their congregations, and even other pastors.

If that all sounds like it could simply be Bopp's jaundiced characterization of the FEC's inquiries, Bopp's testimony includes this transcript of the FEC's deposition of Lt. Col. Oliver North. An attorney for the FEC asks North about prayers between him and the Christian Coalition's Pat Robertson. Bopp and other attorneys are present for the questions, which leads to this testy exchange. The letter Q denotes the FEC's lawyer, the letter A denotes North's responses, and the letter O is used to represent attorneys representing North and the Christian Coalition:

Q: (reading from a letter from Oliver North to Pat Robertson) “‘Betsy and I thank you for your kind regards and prayers.’ The next paragraph is, ‘Please give our love to Dede and I hope to see you in the near future.’ Who is Dede?”

A: “That is Mrs. Robertson.”

Q: “What did you mean in paragraph 2, about thanking -you and your wife thanking Pat Robertson for kind regards?”

A: “Last time I checked in America, prayers were still legal. I am sure that Pat had said he was praying for my family and me in some correspondence or phone call.”

Q: “Would that be something that Pat Robertson was doing for you?”

A: “I hope a lot of people were praying for me, Holly.”

Q: “But you knew that Pat Robertson was?”

A: “Well, apparently at that time I was reﬂecting something that Pat had either, as I said, had told me or conveyed to me in some fashion, and it is my habit to thank people for things like that.”

Q: “During the time that you knew Pat Robertson, was it your impression that he had - he was praying for you?”

O: “I object. There is no allegation that praying creates a violation of the Federal Election Campaign Act and there is no such allegation in the complaint. This is completely irrelevant and intrusive on the religious beliefs of this witness.”

O: “It is a very strange line of questioning. You have got to be kidding, really. What are you thinking of, to ask questions like that? I mean, really. I have been to some strange depositions, but I don't think I have ever had anybody inquire into somebody’s prayers. I think that is really just outrageous. And if you want to ask some questions regarding political activities, please do and then we can get over this very quickly. But if you want to ask abou somebody’s religious activities, that is outrageous.”

Q: “I am allowed to make-’’

O: “We are allowed not to answer and if you think the Commission is going to permit you to go forward with a question about somebody’s prayers, I just don't believe that. I just don't for a moment believe that. I ﬁnd that the most outrageous line of questioning. I am going to instruct my witness not to answer.”

Q: “On what grounds?”

O: “We are not going to let you inquire about people’s religious beliefs or activities, period. If you want to ask about someone’s prayers-Jeez, I don't know what we are thinking of. But the answer is, no, people are not going to respond to questions about people’s prayers, no.”

Q: “Will you take that, at the first break, take it up- we will do whatever we have to do.”

O: “You do whatever you think you have to do to get them to answer questions about what people are praying about.”

Q: “I did not ask Mr. North what people were praying about I am allowed to inquire about the relationship between-’’

O: “Absolutely, but you have asked the question repeatedly. If you move on to a question other than about prayer, be my guest."

Q: “I have been asking you a series of questions about your relationship with Pat Robertson, the Christian Coalition. . . . It is relevant to this inquiry what relationship you had with Pat Robertson andI have asked you whether Pat Robertson had indicated to you that he was praying for you.”

O: “If that is a question, I will further object. It is an intrusion upon the religious beliefs and activities of Dr. Robertson. And how that could - how the Federal Government can be asking about an individual’s personal religious practices in the context of an alleged investigation under the Federal Election Campaign Act, I am just at a complete loss to see the relevance or potential relevance, and I consider that to be also intrusive.”

Q: “Was Pat Robertson praying for you in 1991?”

O: “Same objection.”

A: “I hope so. I hope he still is.”

Asked what he remembers about this exchange, Bopp tells The Weekly Standard he was "white hot," and notes that the transcription isn't entirely accurate becuase it actually excludes many of his objections.

The Christian Coalition was ultimately absolved of any FEC wrongdoing in 1999, and Lerner was promoted to acting General Counsel at the FEC in 2001 before eventually moving on to the IRS. Bopp, who's all too familiar with the aggressive and inappropriate tenor she set leading the FEC's Enforcement Division, says he became concerned about what would happen as soon as Lerner joined the IRS. "When she left the FEC, I thought, 'Wow, this means the not for profit division is gearing up politically,'" he said. "It didn't bode well, because of the way [the FEC] approached cases."